2304468 (Refugee)

Case [2023] AATA 2488

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__­____«­__€€Í“_­____«{2304468 (Refugee) [2023] AATA 2488 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2304468

MEMBER:Namoi Dougall

DATE:5 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 05 July 2023 at 3:01pm

CATCHWORDS
REFUGEE – protection visa – Thailand – previous valid application heard and decided – no longer a reviewable decision – no response to tribunal’s natural justice letter – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65

CASES
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 8 May 2018 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The review application was lodged with the Tribunal on 28 March 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

  3. An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 5 October 2020. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

  4. On 20 March 2023, the Tribunal sent a natural justice letter advising of the above and that the review application may not be a valid application as a decision had been made in a review of the same delegate’s decision on 5 October 2020. No response was received to the Tribunal’s letter

  5. As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.

    DECISION

  6. The Tribunal does not have jurisdiction in this matter.

    Namoi Dougall
    Member


Details
AGLC
2304468 (Refugee) [2023] AATA 2488
Case
[2023] AATA 2488
Decision Date

CaseChat Overview and Summary

The applicant sought review of a decision made by the Minister's delegate concerning a protection visa application. The dispute arose because the applicant had previously made a valid application for a protection visa, which had been heard and decided by the Refugee Tribunal. The Tribunal had issued a natural justice letter to the applicant, to which no response was received.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to review the delegate's decision, given that the original decision had already been the subject of a prior review by the Tribunal. The Tribunal was required to determine if a decision that had already undergone a valid review remained a "reviewable decision" for the purposes of further review.

The Tribunal reasoned that once a decision has been validly reviewed by it, that decision is no longer a reviewable decision. Consequently, the Tribunal concluded that it lacked jurisdiction to entertain a further review of the delegate's decision. The Tribunal's finding was based on the principle that a decision, having been subject to a completed review process, exhausts the available avenues for review by that body.

The Tribunal ordered that it did not have jurisdiction in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.DECISION The Tribunal does not have jurisdiction in this matter.Namoi DougallMember

Ratio Decidendi

Legal Principle Established

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